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The  Place  Occupied  by  the  Judiciary 
in  Our  American  Constitu¬ 
tional  System. 


Address  of 

.  HAMPTON  L.  CARSON,  ESQ., 

^  of  Philadelphia. 

BEFORE  THE 

D 

Virginia  State  Bar  Association 

AT  tHE  HOMESTEAD  HOTEL 
Hot  Springs,  Va. 

July  29th,  30th,  and  31st,  1913 


RICHMOND; 

mCBMOKD  PASS0,  IK0.»  PaiNTSM 


I 

I 


The  Place  Occupied  by  the 

in  Our  American  Constitu¬ 
tional  System. 


Address  of 


HAMPTON  L.  CARSON,  ESQ., 
of  Philadelphia. 

BEFORE  THE 


Virginia  State  Bar  Association 


AT  THE  HOMESTEAD  HOTEL 
Hot  Springs,  Va. 

July  29th,  30th,  and  31st,  1913 


RICHMOND: 

RICHMOND  PRESS,  INC.,  PRINTERS 


.im 


The  Place  Occupied  by  the  Judiciary 
in  Our  American  Constitu¬ 
tional  System. 


Address  of  HAMPTON  L.  CARSON,  ESQ., 
OF  Philadelphia. 


Mr.  President  and  Members  of  the  Virginia  State  Bar  Association: 

My  theme  to-day  is  The  Place  Occupied  by  the  Judiciary  in 
our  American  Constitutional  System.  It  is  a  timely  topic,  for 
such  has  been  the  agitation  and  criticism  of  the  past  eighteen 
months  that  many,  especially  of  the  younger  generation,  have 
concluded  that  our  system  is  outworn,  in  need  of  radical  revision, 
and  that  any  expression  of  reverence  for  the  work  of  the  fathers 
of  the  Republic  is  lamentable  Toryism. 

I  am  going  to  state  the  matter  in  the  plainest  possible  tei'ms. 
My  aim  shall  be  to  present  an  outline  drawing,  so  to  speak,  so 
as  to  exhibit  the  simple,  strong,  but  majestic  features  of  our 
political  architecture.  It  is  rudimentary  that  there  must  be 
law  and  order  in  the  land.  There  must  be  rules  for  the  common 
good.  There  must  be  some  one  to  make  those  rules.  There 
must  be  some  one  whose  duty  it  is  to  see  that  the  rules  are  en¬ 
forced,  and  there  must  be  some  one  to  decide  in  cases  of  doubt 
what  those  rules  are  and  whether  they  have  been  broken.  So¬ 
ciety- — peaceable  and  orderly  society — demands  this.  The  same 
men  or  set  of  men  cannot  act  as  lawmakers,  enforcers  of  the  law 
and  as  judges.  That  would  be  pure  despotism.  These  separate 
functions  must  be  divided,  and  to  make  things  work  without 
friction  the  body  that  makes  the  law  ought  not  to  enforce  it, 
and  the  body  that  enforces  the  law  ought  not  to  be  judge,  and 


4 


the  body  of  judges  ought  not  to  have  a  hand  in  the  making  of 
the  law  or  its  enforcement.  When  the  fathers  planned  an  Ameri¬ 
can  form  of  government  they  said,  in  substance,  We  will  divide 
governmental  powers  between  three  great  departments,  legis¬ 
lative,  executive  and  judicial.  Congress,  the  lawmakers,  shall 
declare  what  the  law  shall  be.  The  President  must  see  that  the 
acts  of  Congress  are  carried  out,  and  in  order  that  Congress  shall 
not  be  tyrannical  and  that  the  President  shall  not  usurp  power, 
and  that  the  Nation  shall  not  encroach  upon  the  States,  and  that 
the  States  shall  not  paralyze  the  Nation,  we  will  write  down  in 
the  Constitution  what  powers  Congress  shall  have,  define  the 
duties  of  the  President,  and  in  order  to  secure  the  observance  of 
the  rules  by  the  government,  we  will  create  an  independent  body 
of  men  to  act  as  umpires — the  Supreme  Court.  That  body 
must  be  the  final  arbiter,  and,  unless  chaos  is  finally  to  rule,  that 
Court  must  have  the  last  word.  The  dispute  must  be  ended 
somewhere  and  at  some  time.  Men  and  States,  Congress  and 
the  President,  are  alike  bound  by  it.  It  is  the  same  way  with 
the  State  courts  and  State  constitutions,  with  this  difference. 
Congress,  representing  the  People  and  the  States  in  their  national 
capacity,  have  no  powers  except  such  as  are  expressly  given  to 
them  by  the  Constitution,  or  are  fairly  necessary  to  the  exercise 
of  the  given  power.  The  State  legislatures  have  every  power 
except  those  which  are  withheld  from  them  by  the  National 
grant,  or  by  the  State  Constitutions,  either  expressly  or  by  fair 
implication.  Hence  the  Constitution  of  the  United  States  is  a 
grant  of  power.  The  State  Constitutions  are  a  denial  or  a 
limitation  of  power.  In  each  case  the  Constitution  is  a  restric¬ 
tion  upon  the  States  or  the  People.  In  each  case  the  purpose 
is  to  protect  the  minority  of  the  People  against  the  tyranny  of 
the  majority.  A  Constitution  represents  in  the  highest  sense 
the  People’s  will  as  a  measure  of  self-defense  against  their  own 
imprudence  or  violence. 

That  is  the  American  system,  and  it  exists  nowhere  else  except 
where  copied  from  us.  Every  student  of  government  the  world 
over  has  admired  and  praised  it  as  the  wisest  and  best  way  to 
end  disputes  over  the  great  questions  which  concern  the  country 
at  large.  The  perfect  balance  between  the  departments  is  of 


5 


the  essence  of  the  matter.  The  judiciary  is  the  balance  wheel, 
for  there  would  be  but  little  use  in  having  a  Constitution  if 
Congress  or  State  legislatures  could  ignore  it,  and  there  would 
be  but  little  use  in  having  a  judiciary  if  some  body  which  did 
not  like  the  decision  could  defy  it  or  overrule  it. 

It  must  always  be  borne  in  mind  that  the  American  judicial 
system  was  an  evolution,  and  not  an  accidental  creation  inspired 
by  the  exigencies  of  a  moment.  The  American  judiciary  is  not 
an  excrescence;  it  is  not  a  limb  nor  a  function ;  it  is  an  organ.  It 
is  a  vital  part  of  our  body  politic,  and  it  is  as  dangerous  to  hack 
at  or  cut  it  to  pieces  as  it  would  be  to  prick  the  kidneys  of  a  man 
with  repeated  thrusts  of  a  needle  or  the  jab  of  a  stiletto.  A 
political  Bright’s  disease  would  soon  set  in  if  the  judiciary  were 
deprived  of  effective  working  power.  All  questions  touching 
the  judiciary  are  questions  affecting  a  vital  organ,  an  organ 
indispensable  not  only  to  political  health  but  to  political  life  in 
America  itself. 

Let  us  now  consider  how  the  judiciary  got  into  this  relation  to 
our  body  politic.  In  Colonial  days  there  were  courts,  of  course, 
but  they  depended  directly  or  indirectly  on  the  British  Crown, 
according  to  the  forms  of  the  charters.  When  the  American 
Revolution  came  on  and  Independence  was  declared  in  July, 
1776,  the  tie  that  bound  the  colonies  to  the  throne  was  sundered. 
Then  there  were  thirteen  separate  States,  each  an  independent 
sovereign.  Each  of  them  went  to  work  after  her  own  fashion 
to  make  a  Constitution  for  herself,  some  of  them  more  speedily 
than  others.  All  of  them  had  judges,  but  in  some  the  judges 
were  chosen  by  the  popular  body  which  had  legislative  power. 
In  others  the  judges  were  appointed  by  the  Governor  and  the 
Legislature;  in  others  by  the  Governor  and  his  Council.  Thei'e 
was  no  very  clear  enumeration  or  distribution  of  powers.  Much 
was  said  about  the  rights  of  the  people,  but  it  was  general  and 
vague  and  did  not  specify  with  particularity  the  boundaries  of 
jurisdiction.  There  was  a  general  confusion  of  executive,  legis¬ 
lative  and  judicial  duties.  Some  States  had  clearer  notions  on 
the  subject  than  others.  In  the  meantime  a  general  object 
lesson  for  all  the  States  was  presented  by  the  affairs  transacted 
by  the  Continental  Congress.  The  thirteen  Articles  of  Confed- 


6 


eration  were  tried  and  failed.  There  was  no  proper  executive. 
The  President  of  Congress  was  merely  a  Speaker  or  moderator 
of  debates.  Executive  business  was  handled  by  committees. 
There  was  but  one  house,  and  there  were  no  courts.  Judicial 
functions  were  performed  by  committees.  Behind  all  this 
there  was  an  absence  of  power.  Nothing  could  be  enforced. 
Every  resolution  of  the  Continental  Congress  had  to  be  sent  to 
the  thirteen  States  for  ratifying  action,  many  of  the  States  were 
tardy,  and  there  was  no  means  of  driving  them  into  line.  It  is 
a  long  story,  a  familiar  one,  a  very  interesting  one,  but  finally 
came  the  Convention  which  framed  the  Constitution  of  the 
United  States.  By  this  time  the  great  statesmen  were  ready 
for  their  work.  They  had  learned  their  lessons  in  the  best 
school,  that  of  experience,  but  they  had  studied  books  as  well 
as  suffered  in  war.  They  knew  all  about  every  form  of  govern¬ 
ment  the  world  had  ever  seen,  from  Achaean  Leagues  in  Greece 
and  the  Republic  of  Rome  before  the  days  of  the  Empire,  and 
the  Italian  Republics,  and  the  States  General  of  Holland,  and 
the  Revolution  in  England  and  the  resulting  Kingdom  in  Eng¬ 
land,  as  well  as  the  contrasted  Monarchies  of  Erance  and  Ger¬ 
many.  They  had  read  Rousseau,  Locke,  Hobbes,  Bacon  and 
Harrington,  but,  better  still,  they  had  studied  Montesquieu, 
who  dwelt  particularly  on  the  importance  of  a  separation  of 
executive,  legislative  and  judicial  power.  They  had  seen  with 
their  own  eyes  what  a  confusion  there  was  in  their  own  States, 
and  they  had  heard  with  their  own  ears  what  a  jangle  there  was 
of  authority.  Many  of  the  members  of  the  Federal  Convention 
were  especially  well  equipped  for  the  task  of  framing  a  National 
Constitution.  There  were  in  all  sixty-five  men.  Thirty-nine 
had  been  members  of  the  Continental  Congress.  Seven  were 
Signers  of  the  Declaration  of  Independence.  Thirty-one  were 
lawyers  by  profession,  of  whom  four  had  studied  law  in  the  Inner 
Temple  in  London,  and  one  had  been  to  Oxford  and  heard  the 
lectures  of  Sir  William  Blackstone.  Ten  had  been  judges  in 
their  own  States.  One  had  been  a  member  of  the  Committee  of 
Congress  styled  The  Court  of  Appeals  in  Cases  of  Capture.  Seven 
had  served  on  committees  to  settle  disputes  between  the  States  as 
to  boundary  lines.  Eight  had  helped  to  frame  the  Constitutions 


7 


of  their  own  States.  Three  had  revised  the  laws  of  their  own 
States.  Eight  had  been  Governors  of  their  respective  States. 
Five  had  been  present  at  the  Annapolis  Convention,  and  three 
were  recognized  as  oracles  upon  questions  of  International  Law. 
With  a  full  knowledge  of  the  evils  and  weaknesses  of  the  Con¬ 
federation,  and  with  a  perfect  familiarity  with  all  those  instances 
of  a  quasi  federal  jurisdiction  which  had  arisen  during  the  time 
of  the  Revolution,  the  Framers  of  the  Constitution  took  up  their 
task.  It  is  plain  that  they  confronted  two  palpable  conditions: 
first,  that  there  were  many  cases  where  the  States  could  not  act 
without  conflict;  and,  next,  that  the  confederated  government 
lacked  the  power  and  the  organs  to  do  final  and  effective  justice. 
Stress  was  therefore  laid  upon  these  salient  features,  and  a  scien¬ 
tific  distribution  of  power  was  made  between  the  executive, 
legislative  and  judicial  branches  of  the  government.  The  Presi¬ 
dent  was  to  execute  the  laws.  The  laws  were  to  be  made  by 
Congress,  consisting  of  two  houses,  and  these  laws  and  the 
'  Constitution  were  placed  under  the  guardianship  of  the  Supreme 
Court  and  such  inferior  tribunals  as  Congress  might  establish. 
The  Courts  of  the  United  States  were  to  have  exclusive  juris¬ 
diction  of  certain  classes  of  cases,  and  finally  the  Constitution 
I  and  laws  of  the  United  States  were  to  be  recognized  as  the 
supreme  law  of  the  land,  and  the  judges  in  every  State  were  to 
be  bound  thereby,  “anything  in  the  Constitution  or  laws  of  any 
1  State  to  the  contrary  notwithstanding.’’ 

The  matter  did  not  rest  upon  theory  alone.  Prior  to  the  time 
that  the  Federal  Convention  met  it  had  become  an  interesting 
question  in  the  States  but  recently  emancipated  from  the 
sovereignty  of  Great  Britain,  as  to  how  far  a  court  could  go  in 
■  dealing  with  an  act  of  the  legislature,  and  the  courts  in  solving 
this  task  in  several  of  the  States  dealt  with  that  feature  which 
is  peculiarly  American,  a  written  State  Constitution.  The 
;  earliest,  and  I  think  I  may  say  the  clearest,  expression  of  what 
I  is  now  familiar  judicial  doctrine,  was  given  by  George  Wythe, 
I  Chancellor  of  Virginia,  in  the  year  1782,  in  the  case  of  Common- 

\  wealth  versus  Caton,  4  Call’s  Reports,  page  1.  The  case  was 

argued  by  Mr.  Edmund  Randolph,  then  Attorney  General  of 
f  Virginia,  subsequently  her  Governor,  and  later  the  first  Attorney 


f 


8 


General  of  the  United  States  and  one  of  the  leading  members 
of  the  Federal  Convention,  who  in  the  course  of  his  argument 
discussed  whether  an  act  of  the  Virginia  Legislature  passed  in 
the  year  1776,  taking  from  the  executive  the  power  of  pardon 
in  cases  of  treason,  had  or  had  not  violated  the  State  Constitu¬ 
tion,  and  particularly  whether  the  court  was  authorized  to  de¬ 
clare  such  an  act  void  because  of  conflict  with  the  Constitution. 
Chancellor  Wythe,  himself  subsequently  a  Framer  of  the  Con¬ 
stitution,  and  in  this  very  case  of  Caton  sitting  as  a  judge, 
declared  “If  the  whole  legislature  (an  event  to  be  deprecated) 
should  attempt  to  overleap  the  bounds  prescribed  to  them  by 
the  people,  I,  in  administering  the  public  justice  of  the  country, 
will  meet  the  united  efforts  at  my  seat  in  this  tribunal^  and, 
pointing  to  the  Constitution,  will  say  to  them,  ‘Here  is  the  limit 
of  your  authority,  and  hither  shall  you  go  but  no  further.’  ’’ 
John  Blair,  also  a  member  of  the  Federal  Convention,  but  at 
that  time  an  associate  of  Wythe  and  later  one  of  the  first  ap¬ 
pointees  by  George  Washington  to  the  bench  of  the  Supreme 
Court  of  the  United  States,  was  of  the  opinion  that  the  court 
had  power  to  declare  any  resolution  of  the  legislature,  or  of  either 
branch  of  it,  to  be  unconstitutional  and  void  if  in  conflict  with 
the  Constitution. 

Six  years  later  in  1788  the  question  was  again  raised  in  the 
very  interesting  “Case  of  the  Judges,’’  4  Call,  135,  which  grew 
out  of  an  attempt  by  the  legislature  to  impose  additional  and 
extra  judicial  duties  upon  the  court,  and  the  judges  found  them¬ 
selves  obliged  to  decide  “that  the  Constitution  and  the  acts 
were  in  opposition,  that  they  could  not  exist  together,  and  the 
former  must  control  the  operation  of  the  latter.’’ 

These  views  were  again  declared  in  several  later  cases,  and 
were  directly  enforced  in  1793  in  Kemper  versus  Hawkins,  2  Va. 
Cases,  20.  See  also  Turner  versus  Turner,  4  Call,  page  234, 
and  Page  -versus  Pendleton,  Wythe’s  Reports,  211. 

In  New  York  a  substantially  similar  question  in  principle  was 
raised  in  the  celebrated  case  of  Rutgers  versus  Waddington 
decided  in  1784.  There  Alexander  Hamilton  in  an  able  argu¬ 
ment  before  the  Mayor’s  Court  of  New  York  City,  contended 
that  the  Trespass  Act,  which  authorized  owners  to  bring  actions 


9 


against  those  who  had  occupied  their  houses  under  British  orders 
during  the  British  occupation,  was  unconstitutional.  Hamilton 
argued  that  the  law  violated  natural  justice,  and  the  decision 
was  placed  upon  that  ground.  Rutgers  versus  Waddington, 
Dawson’s  Pamphlet,  page  44.  Hamilton’s  Works,  edited  by 
J.  C.  Hamilton,  volume  5,  pages  115  and  116;  volume  7,  page  197. 

In  Rhode  Island  the  famous  case  of  Trevett  versus  Weeden 
was  decided  in  1786.  (See  a  scarce  pamphlet  of  J.  B.  Varnum, 
published  in  Providence  in  1787.) 

In  passing  I  might  say  that  this  case  was  the  first  instance  of 
an  attempt  at  judicial  recall  and  signally  failed.  A  butcher  had 
sold  meat  and  his  debtor  tendered  payment  in  the  paper  money 
then  recently  authorized  by  the  legislature  of  Rhode  Island. 
The  plaintiff  objected  to  the  tender  on  the  ground  that  the  con¬ 
tract  had  been  made  prior  to  the  passage  of  the  law,  and  that 
paper  money  could  not  be  thrust  upon  him  without  his  consent. 
The  judges  sustained  the  contention,  and,  the  decision  giving 
great  offense  to  the  legislature,  the  judges,  having  been  them¬ 
selves  chosen  by  the  legislature,  were  attempted  to  be  thrust 
from  their  judicial  offices.  They  protested  against  such  an 
invasion  of  the  independence  of  the  bench  in  a  manner  so  able 
as  to  secure  the  defeat  of  a  resolution  of  the  legislature  declaring 
their  offices  vacant.  A  similar  case,  so  far  as  the  principle  of 
judicial  right  to  review  an  act  of  the  legislature  and  compare  it 
with  the  State  Constitution,  arose  in  the  case  of  Holmes  versus 
Walton,  referred  to  in  State  versus  Parkhurst,  and  reported  in 
4  Halstead,  N.  J.,  444.  See  also  Paper  by  Doctor  Austin  Scott 
in  volume  2  of  Papers  of  the  American  Historical  Association, 
page  86.  In  North  Carolina  in  the  case  of  Bayard  versus  Single- 
ton,  Martin’s  Reports,  page  42,  the  argument  was  made  by  Mr. 
Iredell,  subsequently  an  associate  justice  of  the  Supreme  Court 
of  the  United  States,  that  the  court  had  the  power  to  refuse  to 
enforce  a  law  because  unconstitutional. 

It  is  beyond  the  reach  of  controversy,  therefore,  that  when  the 
Federal  Convention  met  in  1787  for  the  purpose  of  framing  a 
Constitution  for  the  United  States,  the  idea  of  controlling  the 
legislature  through  the  judiciary  was  familiar  to  its  leading  mem¬ 
bers.  It  had  been  asserted  in  Virginia,  New  York,  Rhode 


10 


Island,  New  Jersey  and  North  Carolina.  The  members  of  the 
Convention  who  had,  either  as  counsel  or  as  judges,  considered 
such  a  question,  were  among  the  most  prominent  on  the  floor. 
There  were  from  Virginia,  George  Wythe,  John  Blair,  Edmund 
Randolph  and  George  Mason;  from  New  Jersey,  David  Brearly; 
from  New  York,  Alexander  Hamilton;  from  North  Carolina, 
Richard  Dobbs  Spaight,  informed  specifically  by  his  corres¬ 
pondence  with  Iredell,  the  counsel  in  the  case  of  Bayard  versus 
Singleton.  It  is  unnecessary  for  me  to  go  into  detail  in  quoting 
the  language  of  the  debates  in  the  Convention  itself,  but  no 
careful  student  of  Madison’s  Notes,  or  of  the  Journal  of  the  Con¬ 
vention,  can  fail  to  reach  the  conclusion  that  it  was  generally 
admitted  by  the  delegates  that  the  courts  would  have  the  power 
under  the  Constitution  without  any  express  gift.  Such  a  power 
was  commented  upon  with  approval  in  the  Convention  by  Gerry 
of  Massachusetts,  Morris  of  New  York,  James  Wilson  of  Pennsyl¬ 
vania,  Mason  of  Virginia,  and  Luther  Martin  of  Maryland. 
It  was  opposed  by  Mercer  of  Maryland  and  John  Dickinson,  then 
of  Delaware,  formerly  of  Pennsylvania. 

While  the  ratification  of  the  Constitution  of  the  United  States 
was  under  discussion  in  the  different  States,  the  matter  was 
elaborately  treated  of  in  Nos.  78  and  80  of  the  Federalist,  touch¬ 
ing  particularly  upon  the  independence  of  the  judiciary  and  che 
existence  of  the  power  to  pass  upon  questions  of  constitutionality 
was  taken  for  granted.  It  was  commented  upon  not  as  a  mere 
possibility,  but  in  order  to  remove  any  lingering  objections  there 
might  be  to  such  a  practice.  In  the  State  Conventions  the  mat¬ 
ter  was  discussed,  in  Connecticut  by  Oliver  Ellsworth,  who 
called  the  judiciary  “a  constitutional  check”;  in  North  Carolina 
by  W.  R.  Davies;  in  Pennsylvania  by  James  Wilson;  and  in 
Virginia  by  John  Marshall,  Edmund  Randolph  and  Patrick 
Henry.  The  last  named  was  a  decided  opponent  of  the  Consti¬ 
tution,  but  he  was  an  earnest  advocate  of  the  independence  of 
the  judiciary.  He  believed  that  the  judges  should  decide  upon 
the  constitutionality  of  a  law,  and  feared  that  the  National 
Judiciary  as  organized  would  not  possess  sufficient  independence 
for  this  purpose. 

It  is  now  in  order  to  trace  the  spread  of  the  doctrine  through 


11 


the  decisions  of  the  Supreme  Court  of  the  United  States.  The 
Judiciary  Act  of  24  September,  1789,  which  was  the  work 
almost  exclusively  of  Oliver  Ellsworth,  the  third  Chief  Justice 
of  the  United  States  and  himself  a  member  of  the  Federal  Con¬ 
vention,  although  he  was  aided  in  part  in  the  drafting  of  the 
statute  by  Richard  Henry  Lee  of  Virginia,  both  men  being 
entirely  familiar  with  the  views  of  their  colleagues,  provided  for 
the  review  in  the  Supreme  Court  of  the  United  States  of  judg¬ 
ments  in  the  circuit  courts  and  district  courts  upon  writs  of 
error,  as  well  as  upon  a  certificate  of  division  of  opinions,  whether 
the  causes  originated  in  the  circuit  courts  or  were  removed  there 
from  the  State  courts,  as  well  as  for  the  review  of  cases  where  the 
validity  of  State  statutes  or  any  exercise  of  State  authority  shotdd 
be  drawn  in  question,  on  the  ground  of  repugnance  to  the  Con¬ 
stitution,  treaties  or  laws  of  the  United  States,  and  the  decision 
should  be  in  favor  of  their  validity.  This  statute,  which  it  is  no 
exaggeration  to  term  a  veritable  bond  of  union,  is  a  clear  legis¬ 
lative  expression  of  the  views  of  the  first  Congress  under  the 
Constitution — that  the  questions  referred  to  are  judicial  ques¬ 
tions,  and  that  the  determination  of  them  belongs,  under  the 
Constitution,  to  the  Supreme  Court. 

The  first  case  in  which  the  power  of  the  Federal  courts  to 
decline  to  enforce  an  act  of  Congress  was  asserted  illustrates  the 
prevailing  idea  as  to  the  position  of  the  judiciary,  as  well  as  the 
extreme  modesty  of  the  judges.  The  case  is  Rayburn’s,  2  Dal¬ 
las,  409.  Congress  had  passed  an  act  in  March,  1792,  providing 
for  the  settlement  of  claims  of  widows  and  orphans  barred  by 
certain  limitations,  and  regulating  claims  for  naval  pensions. 
The  act  directed  the  United  States  Circuit  Judges  to  pass  upon 
such  claims  and  make  their  decision,  subject  to  review  by  the 
Secretary  of  War  and  by  Congress.  In  the  Circuit  Court  for 
the  District  of  New  York,  Chief  Justice  Jay,  Justice  Cushing 
and  District  Judge  Duane  filed  an  order  declining  to  execute 
the  act  as  judges,  but  declaring  that  “As  the  objects  of  this  act 
are  exceedingly  benevolent  and  do  honor  to  the  humanity  and 
justice  of  Congress,  and  as  the  judges  desire  to  manifest  on  all 
proper  occasions  and  in  every  proper  manner  their  highest 
respect  for  the  National  Legislature,  they  will  execute  this  act 


12 


in  the  capacity  of  commissioners.”  Justices  Wilson  and  Blair 
and  District  Judge  Peters,  of  the  Circuit  Court  for  Pennsylvania, 
absolutely  refused  to  execute  the  act.  Justice  Iredell  and 
District  Judge  Sitgreaves,  of  the  North  Carolina  Circuit,  before 
any  case  came  before  them  joined  in  a  letter  to  the  President  ex¬ 
pressing  their  doubt  as  to  their  power  under  the  law  to  act  even 
as  commissioners. 

The  question  reached  the  Supreme  Court  at  the  August  Term 
1792,  on  an  application  for  a  mandamus  to  the  District  court 
for  the  District  of  Pennsylvania;  Attorney  General  Randolph 
entered  into  an  elaborate  discussion  and  analysis  of  the  powers 
and  duties  of  the  court,  and  advised  the  execution  of  the  law. 
Of  his  arguments  he  said,  “The  sum  of  my  arguments  was  an 
admission  of  the  power  of  the  court  to  refuse  to  execute,  but  the 
unfitness  of  this  occasion.”  See  Conway’s  Life  of  Edmund 
Randolph,  pages  144  and  145.  No  doubt  existed  in  the  minds 
of  the  judges,  yet  so  great  was  the  desire  to  avoid  a  conflict  that 
the  motion  was  taken  under  advisement  and  held  until  the 
statute  was  amended. 

A  subsequent  case,  however,  was  brought  by  amicable  action 
against  one  Yale  Todd  to  recover  money  paid  him  under  a  find¬ 
ing  of  Chief  Justice  Jay  and  Judges  Cushing  and  Law,  acting 
as  commissioners.  After  argument  judgment  was  rendered 
against  the  defendant.  No  opinion  stating  the  grounds  of  the 
decision  was  filed,  but  the  result  was  a  determination  that,  as 
the  power  conferred  by  the  Act  of  Congress  of  1792  was  not 
judicial  within  the  meaning  of  the  Constitution,  the  act  was 
unconstitutional.  Chief  Justice  Jay  and  Justices  Cushing, 
Wilson,  Blair  and  Patterson  were  present  at  the  decision,  which 
seems  to  have  been  unanimous.  See  Note  No.  1  to  the  Case  of 
the  United  States  versus  Ferreira,  13  Howard,  40  to  52. 

The  question  was  again  raised  in  1798  in  the  case  of  Calder 
versus  Bull,  3  Dallas,  386,  and  some  doubts  were  expressed  by 
Mr.  Justice  Chase  as  to  the  jurisdiction  of  the  court  to  determine 
that  any  law  of  a  State  legislature  contrary  to  the  Constitution 
of  the  State,  was  void,  but  he  declined  to  express  an  opinion 
whether  the  Supreme  Court  could  declare  void  an  act  of  Con- 
ress  contrary  to  the  Federal  Constitution. 


13 


A  similar  question  was  raised  in  the  case  of  Cooper  versus 
Telfair,  4  Dallas,  194,  where  Mr.  Justice  Chase  said,  “It  is  a 
general  opinion,  indeed  it  is  expressly  admitted  by  all  this  bar, 
and  some  of  the  judges  have  individually  in  the  circuits  decided 
that  the  Supreme  Court  can  declare  an  act  of  Congress  to  be 
unconstitutional  and  therefore  invalid,  but  there  is  no  adjudica¬ 
tion  of  the  Supreme  Court  itself  upon  the  point.  I  agree,  how¬ 
ever,  in  the  general  sentiment.”  The  learned  judge  had  evident¬ 
ly  forgotten  the  decision  in  the  case  of  United  States  versus  Yale 
Todd.  The  question  was  raised  before  Chief  Justice  Marshall 
in  the  famous  case  of  Marbury  versus  Madison,  1  Cranch,  137, 
in  which  as  Chancellor  Kent  declares  “the  power  and  duty  of 
the  judiciary  to  disregard  an  unconstitutional  act  of  Congress, 
or  of  any  State  legislature,  were  declared  in  an  argument  ap¬ 
proaching  to  the  precision  and  certainty  of  a  mathematical 
demonstration .  ’  ’ 

The  language  of  Chief  Justice  Marshall  is  clear  and  conclusive. 

“The  Constitution  is  either  a  superior,  paramount  law,  un¬ 
changeable  by  ordinary  means,  or  it  is  on  a  level  w'ith  ordinary 
legislative  acts,  and,  like  any  other  act,  is  alterable  when  the 
legislature  shall  please  to  alter  it.  If  the  former  part  of  the 
alternative  be  true,  then  a  legislative  act  contrary  to  the  Con¬ 
stitution  is  not  law.  If  the  latter  part  be  true,  then  written 
constitutions  are  absurd  attempts  on  the  part  of  the  people  to 
limit  a  power  in  its  own  nature  illimitable  .  .  .  If  an  act  of  the 
legislature,  repugnant  to  the  Constitution,  is  void,  does  it, 
notwithstanding  its  invalidity,  bind  the  courts  and  oblige  them 
to  give  it  effect?  Or,  in  other  words,  though  it  be  not  law,  does 
it  constitute  a  rule  as  operative  as  though  it  was  a  law?  This 
would  be  to  overthrow,  in  fact,  what  was  established  in  theory; 
and  would  seem,  at  first  view,  an  absurdity  too  gross  to  be  in¬ 
sisted  upon.  It  shall,  however,  receive  more  attentive  con¬ 
sideration.  It  is  emphatically  the  province  of  the  judicial 
department  to  say  what  the  law  is.  Those  who  apply  the  rule 
to  particular  cases,  must  of  necessity  expound  and  interpret 
that  rule.  If  two  laws  conflict  with  each  other,  the  courts  must 
decide  on  the  operation  of  each,  this  is  the  very  essence  of  judi¬ 
cial  duty.  If,  then,  the  courts  are  to  regard  the  Constitution, 


14 


and  the  Constitution  is  superior  to  any  ordinary  act  of  the  legis¬ 
lature,  the  Constitution,  and  not  such  ordinary  act  must  govern 
the  case  to  which  they  both  apply.  Those,  then,  who  controvert 
the  principle  that  the  Constitution  is  to  be  considered  in  court 
as  a  paramount  law,  are  reduced  to  the  necessity  of  maintaining 
that  courts  must  close  their  eyes  on  the  Constitution  and  see 
only  the  law.” 

To  characterize  such  reasoning  as  sophistry  is  childish.  A 
school  boy  might  as  well  challenge  a  proposition  of  Euclid  or 
attempt  to  ridicule  the  Principia  of  Newton.  Many  men  of 
an  atrabilious  critical  disposition  have  stormed  at  it  in  impotent 
rage  and  have  denounced  it  as  mere  obiter  dictum,  but  notwith¬ 
standing  all  assaults  it  stands  as  an  adamantine  basis  of  reason¬ 
ing,  and  constitutes  the  invincible  buttress  of  our  nationality. 
The  power  was  not  again  seriously  questioned  in  the  Federal 
Courts  for  many  years,  until  the  question  directly  arose  in  Cohens 
versus  Virginia,  6  Wheaton,  264.  The  reasoning  of  Marshall 
in  that  case  has  settled  it  forever.  Nothing  but  a  political 
earthquake  can  unsettle  it.  The  great  Pyramid  of  Cheops  has 
stood  for  six  thousand  years  unshaken  by  the  barking  of  the 
jackals  at  its  base. 

A  profound  student  of  our  institutions,  the  late  Lord 
Brougham,  has  said,  “The  power  of  the  judiciary  to  prevent 
either  the  State  legislatures  or  Congress  from  overstepping  the 
limits  of  the  Constitution  is  the  very  greatest  refinement  in  social 
polity  to  which  any  set  of  circumstances  has  ever  given  rise,  or 
to  which  any  age  has  ever  given  birth.”  As  to  Americans,  an 
hundred  volumes  would  not  hold  what  they  have  said  in  its  praise. 

For  practical  illustration  an  instance  or  two  may  be  given  to 
show  what  we  owe  to  this  doctrine.  New  York  tried  to  keep 
out  the  commerce  of  the  Nation  from  the  Hudson  River  by  giving 
an  exclusive  right  to  one  of  her  citizens  to  navigate  that  river 
with  steam,  and  the  State  courts  sustained  it.  The  Supreme 
Court  of  the  United  States  held  that  it  was  unconstitutional. 
The  States  of  California  and  Missouri  arrogated  to  themselves 
the  right  to  prohibit  the  transportation  of  merchandise  from 
other  States  except  on  payment  of  toll.  The  Supreme  Court 
said  that  was  unconstitutional.  The  State  of  Nevada  tried  the 


15 


same  thing  with  reference  to  the  travel  of  citizens  of  other 
States  through  her  boundaries.  The  Supreme  Court  said  that 
was  unconstitutional.  Other  States  have  tried  to  compel  the 
payment  of  a  tax  before  a  citizen  of  another  State  should 
be  at  liberty  to  buy  or  sell  within  their  borders.  Again  the 
Supreme  Court  said  that  was  unconstitutional.  Monopolistic 
charters  were  upset  in  the  same  way.  The  powers  of  States  to 
tax  an  agency  of  the  Nation  out  of  existence  have  been  upset  in 
the  same  way.  The  rights  of  the  Government  to  regulate  and 
control  big  corporations  and  to  dissolve  gigantic  conspiracies  in 
restraint  of  trade,  have  been  sustained  in  the  same  way.  Few 
laymen  appreciate  and  many  lawyers  forget  what  we  owe  to 
this  doctrine.  It  has  saved  us  over  and  over  again  from  discord 
and  unhappiness  as  well  as  from  business  paralysis  and  loss. 

As  to  the  States,  the  instances  are  legion  where  snake  bills 
and  monopolies  and  all  sorts  of  unfairness  have  been  strangled 
by  the  courts.  Yet  we  all  know  that  attacks  have  been  made 
upon  the  courts,  some  of  them  vile  indeed,  but  the  majority  of 
the  attacks  are  untrue  and  unfair.  The  courts,  taken  as  a  body, 
deserve  and  receive  the  confidence  of  the  people.  The  man  who 
would  deliberately  undertake  to  undermine  and  destroy  the 
public  confidence  in  the  integrity  and  wisdom  of  the  judiciary, 
which  is  our  sheet  anchor,  deserves  the  fate  of  Guy  Fawkes. 
No  fair-minded  man  will  rail  against  the  church  as  an  institution 
because  some  men  in  it  are  bigots  and  others  are  unchaste.  No 
man  would  denounce  doctors  and  surgeons  as  a  learned  profession 
because  quacks  and  charlatans  are  to  be  found.  No  man  would 
decry  our  universities  and  colleges  because  professors  are  some¬ 
times  shallow  doctrinairies.  No  man  would  impugn  the  general 
honor  of  the  American  merchant  because  some  of  them  cheat 
and  sell  spurious  goods.  No  man  will  blacken  the  character  of 
American  labor  because  its  strikes  are  sometimes  violent  and 
destructive.  No  man  will  deny  the  general  good  character  of  a 
community  because  he  sees  many  sad  lapses  of  conduct  in  indiv¬ 
iduals.  Let  us  be  fair  to  the  courts. 

Of  course,  the  wise  framers  of  our  Constitution  foresaw  that 
there  might  be  occasions  for  amendments  to  the  fundamental 
law.  They  were  not  so  shortsighted  as  to  clamp  a  Constitution 


16 


upon  the  people  like  a  straight  jacket.  They  made  the  Consti¬ 
tution  sufficiently  flexible  to  admit  of  expansion  and  normal 
growth,  and  they  also  provided  for  those  grave  changes  which 
in  the  course  of  time  called  for  amendments.  But,  having  taken 
the  pains,  after  long  and  serious  consideration,  to  frame  consti¬ 
tutions  based  on  experience  and  the  teachings  of  human  history, 
into  which  they  built  the  results  of  suffering  and  war,  they  were 
careful  that  the  changes  to  be  made  should  be  the  result  of  equal 
deliberation.  They  did  not  expose  their  work  to  rash  innova¬ 
tions.  They  knew  that  it  was  far  easier  to  tear  down  than  to 
build  up.  They  knew  that  popular  clamour  is  sometimes  like 
a  destructive  storm.  They  wished  to  insure  stability  and  wisdom 
in  the  Government.  They  did  not  believe  in  nostrums  or  cura¬ 
tive  quackery.  They  knew  that  men  would  not  and  could  not 
be  easy  in  their  minds,  either  about  their  business,  their  property 
or  their  liberties,  if  the  Government  was  subject  to  sudden  and 
violent  changes.  Sound,  steady  government  was  what  they 
aimed  at.  They  knew  that  the  jumping  and  thumping  and 
rattling  of  an  engine  meant  poor  mechanism  or  a  condition  of 
danger.  Hence  they  provided  for  orderly  amendments  through 
representative  bodies  whose  work  was  finally  to  be  submitted 
to  the  people.  Detail  as  to  the  exact  method  in  each  State 
would  be  tedious  and  is  not  necessary  to  this  discussion.  The 
principle  is  that  each  amendment  as  proposed  must  first  be  passed 
upon  by  the  representatives  of  the  people,  and  finally  ratified 
or  adopted  by  the  people  themselves.  There  was  no  suggestion 
that  war  should  be  made  upon  one  of  the  great  departments  of 
the  Government,  nor  that  the  organ  of  a  final  exposition  of  the 
law  should  be  made  the  target  of  abuse. 

I  am  aware  that  there  is  a  zone  of  authority  already  in  posses¬ 
sion  of  the  judiciary,  the  invasion  of  which  has  been  strongly  and 
ably  criticised  and  the  further  subjection  of  which  is  dreaded  by 
many  thoughtful  and  patriotic  men  as  fraught  with  the  danger 
of  a  subversion  of  the  legislative  branch.  It  lies  upon  the  border 
line,  and  has  given  rise  to  differences  of  opinion  even  among 
judges  themselves  as  to  what  is  properly  a  legislative  or  a  judicial 
question.  I  am  also  aware  of  the  gradual  shifting  from  time  to 
time  of  points  of  view  of  the  field  of  conflict,  the  determination 


17 


of  the  judicial  attitude  being  settled  at  critical  moments  by 
a  very  narrow  majority  of  the  judges. 

I  cannot  dwell  upon  these  without  blurring  the  sharpness  of 
the  outlines  of  my  sketch,  but  I  ought  not  to  overlook  their 
existence  lest  I  should  be  mistaken  for  a  blind  zealot  of  govern¬ 
ment  by  the  judiciary,  which  I  am  not.  It  is  true,  under  all 
common  law  methods  of  development,  essentially  characteristic 
of  Anglo-Saxon  and  Anglo-American  liberty,  that  systems  become 
overgrown  in  certain  directions,  and  that  rank  shoots  spring 
from  trunk  or  branches,  but  no  skilled  or  prudent  husbandman 
would  use  the  axe  Avhere  judicious  pruning  would  suffice.  There 
is  a  need,  and  a  crying  one,  I  think,  for  a  thorough  study  of 
the  differences  between  legislative,  executive,  and  judiciary 
power  in  the  light  of  modern  instances  and  a  re-survey  of  the 
territory  appropriate  to  each  so  as  to  guard  against  trespasses 
which  are  quite  as  common  in  executive  officers  as  in  legislators 
or  judges.  It  might  be,  if  such  a  study  were  seriously  and 
reverently  undertaken,  that  the  judiciary  would  voluntarily 
withdraw  from  the  determination  of  questions  largely  economic, 
social  or  political,  and  that  legislators,  alive  to  the  performance 
of  their  duty,  will  face  their  responsibilities  with  courage  equal 
to  the  task  of  stating  in  unambiguous  terms  exactly  the  legisla¬ 
tive  intent  instead  of  the  evasive  cowardice  which  hides  itself 
in  statutes  of  doubtful  import.  It  might  also  be  that  executive 
officers  will  cease  to  exercise  the  power  of  coercive  persuasion 
and  moderate  their  ambitions  to  wrest  from  the  popular  represen¬ 
tative  branch  the  right  to  initiate  and  mould  policies.  It  may 
also  be  that  the  radicals,  having  instilled  energy  and  vigor  and  a 
broader  sympathy  with  the  claims  of  Democracy  into  every 
department  of  the  Government  and  the  public  service,  will  be 
willing  to  abate  a  little  from  the  spirit  of  vandalism  and  consider 
the  scope  and  character  of  amendments  to  the  fundamental  law 
without  disturbing  the  rights  of  the  Courts  to  pass  on  constitu¬ 
tional  questions,  and  without  marring  the  most  expressive  fea¬ 
ture  of  our  system. 

It  has  been  proposed,  however,  in  certain  quarters  and  ser¬ 
iously  contended  for,  that  decisions  of  a  State  Court  on  constitu¬ 
tional  questions  should  be  subject  to  revision  by  the  people; 


18 


that  in  a  certain  class  of  cases,  if  any  considerable  number  of 
the  people  feel  that  the  decision  is  in  defiance  of  justice,  they 
should  be  given  the  right  by  petition  to  bring  before  the  voters 
at  some  subsequent  election,  either  special  or  otherwise,  as  might 
be  decided,  and  after  the  fullest  opportunity  for  deliberation  and 
debate,  the  question  whether  or  not  the  judges’  interpretation 
of  the  Constitution  is  to  be  sustained.  If  sustained,  well  and 
good.  If  not,  then  the  popular  verdict  is  to  be  accepted  as  final. 
The  decision  is  to  be  treated  as  reversed,  and  the  construction 
of  the  Constitution  definitely  decided,  subject  only  to  action 
by  the  Supreme  Court  of  the  United  States. 

How  crude  this  plan  is,  and  how  lacking  in  detail.  Who  is  to 
determine  what  constitutes  “a  considerable  number  of  the  peo¬ 
ple”?  What  is  meant  by  “defiance  of  justice”?  Are  we  rele¬ 
gated  to  a  state  of  nature?  Is  a  decree  of  a  court  of  justice, 
reached  by  sworn  judges,  learned  in  the  law,  to  be  put  into  the 
melting  pot  of  the  emotions?  To  whom  is  the  petition  for  a 
general  election  to  be  presented,  and  what  will  happen  if  it  were 
refused?  Who  is  to  decide  about  the  special  election?  Where 
are  the  debates  to  be  had,  and  who  are  the  parties  who  are  to 
deliberate,  and  who  is  to  moderate  or  preside  over  the  debates? 
Is  the  law  to  be  kept  in  a  state  of  uncertainty  until  the  final  vote 
is  taken?  How  is  the  result  of  the  vote  to  be  certified,  and  by 
whom?  To  whom  is  it  to  be  certified?  How  will  it  reach  the 
Supreme  Court  of  the  United  States?  Who  are  to  be  the  parties 
to  the  suit,  how  is  the  record  to  be  made  up,  and  what  will  happen 
if  the  Supreme  Court  of  the  United  States  reverses  all  that  has 
been  previously  done?  Passing  by  all  these  practical  difficulties, 
let  us  concern  ourselves  with  the  principle  involved.  If  it  is 
urged  that  the  decision  of  a  court  is  to  be  subject  to  revision  by 
the  people,  that  moment  you  hamstring  the  courts  and  emasculate 
the  law,  because  you  have  no  principles,  no  rules,  no  authorities, 
no  science,  no  means  by  which  the  people  are  to  judge  of  the 
decision,  except  their  own  notions  of  justice.  These  will  vary 
according  to  the  time,  place  and  circumstance.  Men  of  brazen 
lungs  or  with  a  knack  at  story-telling,  or  with  the  subtilty  of 
demagogues,  will  work  on  the  passions  and  prejudices  or  will 
encourage  envy,  hatred,  malice  and  all  uncharitableness,  and 


19 


there  will  be  a  Babel  of  confusion.  In  the  next  place,  respect 
for  law,  which  is  our  crying  need,  will  vanish.  The  court  and 
the  decision  will  be  the  main  subject  of  discussion,  and  abuse  of 
the  judges  and  a  contempt  for  the  law  will  become  a  part  of  the 
debates  and  deliberations.  To  keep  up  agitation  over  the  courts 
in  all  the  States  of  the  Union  about  their  decisions  on  constitu¬ 
tional  questions,  which  will  vary  in  every  State  and  with  each 
statute  under  consideration,  will  be  confusion  worse  confounded 
if  the  majority  of  the  people  in  the  States  do  not  all  think  and 
act  alike.  The  loss  to  business,  to  orderly  government,  to  respect 
for  law,  to  certainty  of  the  law',  to  uniformity  of  the  law,  will  be 
incalculable.  Everything  wall  be  swimming  in  a  sea  of  uncer¬ 
tainty.  It  would  give  birth  to  a  most  irrational  way  of  amending 
the  Constitution  by  piecemeal  and  by  chance.  Law  and  justice, 
instead  of  being  as  stable  as  the  hills,  will  become  as  unstable  as 
the  waves.  So  too  my  sense  of  reverence  is  shocked.  I  am  not 
ashamed  to  confess  that  I  do  reverence  American  institutions. 
I  do  revere  the  wisdom  of  our  sires.  I  do  believe  that  that  which 
has  cost  so  much  in  blood  and  tears  and  money  and  patriotism, 
is  wwth  saving.  Heroes  have  died  for  it.  Women  have  been 
widowed  for  it.  Children  have  been  orphaned  for  it.  To  chip 
off  the  expi'essive  features  of  the  Constitution  bit  by  bit,  to  deface 
the  noblest  column  in  our  Temple  of  Liberty,  is  nothing  less  than 
sacrilege. 

It  is  now  in  order  to  ask  what  effects  w^ould  the  doctrine  of 
the  recall  of  judges,  or  the  recall  of  decisions,  have  upon  our 
judiciary?  In  the  first  place,  it  w-ould  destroy  the  independence 
of  the  bench.  This  is  not  a  mere  phrase.  It  is  something  of 
priceless  value.  For  six  hundred  years  our  ancestors  struggled 
to  secure  an  independent  bench  of  judges.  From  the  days  of 
William  the  Conqueror  to  those  of  William  the  Third  judges  were 
appointed  by  the  Crowm  to  hold  during  the  pleasure  of  the  r  on- 
arch.  If  judges  did  something  displeasing  to  the  king  they  were 
dismissed.  What  did  this  mean?  Every  time  a  judge  had  the 
courage  to  declare  that  the  king  was  subject  to  the  law  and  could 
not  rule  arbitrarily,  he  w'as  disrobed,  in  modern  phrase  “recalled.” 
It  is  to  the  lasting  honor  of  Sir  Edward  Coke,  Lord  Chief  Justice 
of  England,  that  when  he  was  asked  by  James  the  First  what  he 


20 


would  decide  in  a  given  case,  he  replied  “That  which  a  good 
judge  ought  to  do,  according  to  the  facts  and  the  law  as  I  see 
them.”  He  lost  his  place,  but  his  bravery  and  independence 
inspired  other  men.  Finally  when  the  wretched  puppets  of  the 
royal  will,  the  infamous  Scroggs,  the  pliant  Wright  and  the 
bloody  Jefferys  had  filled  the  land  with  scaffolds,  and  James 
the  Second  had  abdicated  the  Crown,  the  new  king,  William  the 
Third,  announced  as  a  fundamental  doctrine  of  liberty  that  the 
judges  should  hold  their  places  during  good  behaviour  and  not 
at  the  royal  will. 

All  these  things  took  place  during  the  time  that  America  was 
being  settled,  and  our  well  instructed  fathers  knew  them  all. 
When  it  came  to  their  turn  to  substitute  the  people  for  the  crown 
as  the  source  of  sovereignty,  they  did  not  turn  backward  and 
put  into  the  hands  of  the  people  the  old  kingly  power  of  recalling 
judges.  The  Progressives  of  to-day  fail  to  see  that  they  are 
retrograding  to  ancient  tyranny  when  they  wish  to  subject  the 
conduct  of  the  bench  to  the  will  of  the  appointing  power.  Not 
so  with  our  fathers.  When  in  1787,  in  the  very  hall  in  which  the 
Declaration  of  Independence  had  been  signed,  they  framed  the 
Constitution  of  the  United  States,  they  built  into  the  Constitu¬ 
tion  the  independence  of  the  judiciary,  and  they  safeguarded  it 
by  expressly  adopting  the  good  behaviour  principle,  and  by 
providing  that  judicial  salaries  should  not  be  diminished  during 
their  terms,  so  as  to  prevent  a  compulsion  of  the  judges  by 
starvation  to  popular  or  executive  will.  The  remedy  for  cor¬ 
ruption  or  misbehaviour  was  by  impeachment. 

Our  State  Constitutions,  while  changing  from  time  to  time,  so 
as  to  make  the  judges  elective  by  the  people  for  fixed  terms 
preserved  the  independence  of  the  bench  in  all  other  respects. 
The  best  description  of  an  independent  judge  that  I  have  ever 
read  is  given  by  Rufus  Choate  when  he  said,  “If  a  law  is  passed 
by  a  unanimous  legislature,  clamoured  for  by  the  general  voice 
of  the  public,  and  a  cause  is  before  a  judge  upon  it,  in  which 
the  whole  community  is  on  one  side,  and  an  individual  nameless 
or  odious  on  the  other,  and  he  believes  it  to  be  against  the  Con¬ 
stitution,  he  must  so  declare  it —  or  there  is  no  judge.  If  Athens 
comes  there  to  demand  that  the  cup  of  hemlock  be  put  to  the 


21 


lips  of  the  wisest  of  men,  and  he  believes  that  he  has  not  sinned 
against  the  law,  he  must  deliver  him,  although  the  thunder  light 
upon  the  unterrified  brow'.” 

Who  would  honor  a  judge  who  quaked  with  fear  in  the  pres¬ 
ence  of  a  mob,  either  inside  or  outside  of  the  court  house?  Who 
would  respect  a  judge,  who,  wdth  his  ear  to  the  ground,  sought 
to  ascertain  in  advance  of  his  decision  w'hat  the  people  thought 
the  decision  ought  to  be?  Who  would  revere  a  man  or  a  body 
of  men,  though  robed  in  ermine,  who  were  ready  to  surrender 
their  conscientious  convictions,  abandon  their  intellectual  honor 
and  integrity,  and  disregard  their  oaths  of  office,  to  pander  to 
popular  will?  Who  would  not  denounce  the  wretched  cow'ard 
who  foreswore  his  duty  to  palter  wdth  the  foul  fiend  of  temptation 
known  as  popular  applause?  What  would  happen  if  fear  mis¬ 
read  true  popular  opinion?  Who  could  measure  the  depth  of 
that  disgrace?  Did  Pontius  Pilate  cleanse  his  hands  of  the  blood 
of  a  just  man  by  washing  them  in  public,  or  his  conscience  in 
saying  ‘‘I  surrender  him  to  you?”  Did  the  people  display  their 
wisdom  and  justice  by  preferring  Barrabas  to  Christ?  In  the 
next  place,  the  recall  of  judges,  or  the  recall  of  decisions,  w'ould 
destroy  the  dignity  and  majesty  of  the  law.  If  the  people  de¬ 
mand  that  a  judge  should  decide  at  his  peril  lest  he  be  recalled, 
it  would  at  least  be  fair  to  give  him  notice  in  advance  what  public 
opinion  was.  How  could  this  be  done  in  a  given  case  involving 
disputed  questions  of  law  and  fact? 

In  the  third  place,  the  recall  of  judges  would  sweep  the  bench, 
and  the  judiciary  department  would  be  prostrated.  It  would 
not  mean  the  recall  of  one  judge,  but  the  recall  of  all  the  judges 
who  had  participated  in  the  decision  of  the  majority  of  the  judges, 
high  or  low,  in  the  court  of  first  instance  as  well  as  in  the  Supreme 
or  Appellate  Court.  The  mass  of  the  people  always  claim  for 
their  action  the  right  to  a  majority  rule,  but  in  this  case  they 
would  deny  the  rule  of  the  majority  upon  the  bench,  and  by 
sweeping  the  bench  of  that  majority  leave  it  in  possession  of  a 
feeble  and  cowardly  minority. 

In  the  last  place,  the  recall  of  decisions  would  be  worse  than 
the  recall  of  judges.  Judges  are  but  individuals,  but  decisions 
are  a  part  of  the  law  until  met  by  the  orderly  methods  of  amend- 


22 


ment  previously  discussed.  Certainty  and  uniformity  of  the 
law  would  be  utterly  lost.  We  have  difficulties  enough  on  that 
point,  owing  to  our  many  separate  State  sovereignties,  which  we 
are  striving  to  meet  through  our  committees  in  State  bar  associa¬ 
tions  on  uniform  legislation.  Why  should  we  add  to  the  trouble? 
Suppose  the  people  of  one  State  had  one  view  and  the  people  of 
another  State  had  another  view,  and  you  multiply  all  this  by  the 
number  of  States  in  the  Union,  and  you  had  to  have  a  mass 
meeting  in  every  county  in  every  State  to  vote  upon  the  recall 
of  a  decision,  when  and  how  could  it  be  recalled  until  all  the 
counties  had  been  heard  from  and  all  the  States  had  been  heard 
from?  In  the  meantime  what  is  the  law?  What  lawyer  could 
safely  advise  his  client?  What  business  man  would  be  safe  in 
following  the  advice  if  any  counsel  were  bold  enough  to  venture 
an  opinion?  Is  this  the  system  of  law  and  order  which  we  have 
been  taught  to  revere?  Do  we  really  desire  a  change? 

Let  me  now  contrast  the  present  orderly  method  of  reaching 
a  final  conclusion  upon  constitutional  questions  with  the  pro¬ 
posed  revolutionary  methods  of  the  recall. 

A  constitutional  question  may  arise  under  an  Act  of  Congress, 
a  foreign  treaty,  a  State  Constitution  or  a  State  statute,  in  a 
suit  between  citizens  and  foreigners,  citizens  of  different  States 
or  citizens  of  the  same  State,  and  in  this  sense  a  corporation  is  to 
be  regarded  as  a  citizen  of  the  State  of  its  parentage.  It  may 
affect  either  civil  or  personal  rights  or  property  rights  defined 
and  guaranteed  by  the  Constitution.  No  Act  of  Congress  can 
be  valid  which  is  in  conflict  with  the  Constitution  of  the  United 
States.  No  State  Constitution  can  be  framed  in  conflict  with  the 
Constitution  of  the  United  States,  and  no  State  statute  can 
conflict  either  with  the  Federal  Constitution  or  the  Constitution 
of  the  particular  State  where  it  originated.  Questions  affecting  a 
State  Constitution  are  finally  decided  by  the  highest  court  in 
that  State,  and  cannot  be  carried  to  Washington  unless  the  alle¬ 
gation  is  one  involving  a  provision  of  the  National  Constitution. 

This  is  our  system,  and  the  principles  announced  are  funda¬ 
mental.  They  are  necessary  to  the  harmony  of  the  Union. 
Observe  the  variety  and  the  range  of  the  questions,  and  observe 
also  that  they  are  not  matters  of  economic  policy.  Policy  is  not 


23 


a  judicial  question  at  all,  it  is  legislative.  Hence  the  question 
for  the  court  always  is  this,  has  Congress  or  the  Legislature  the 
power  to  pass  the  act?  If  it  has  no  such  power  the  statute  falls. 
If  the  power  exists  the  court  cannot  review  the  wisdom  or  the 
folly  of  the  statute.  This  too  is  necessary  to  the  harmony  of 
our  system.  When  a  question  lies  upon  the  border  line  between 
the  departments  and  arises  out  of  a  statute  which  is  badly  ex¬ 
pressed,  owing  to  uncertainty  in  the  mind  of  the  legislature  as 
to  its  exact  intent,  the  judicial  task  becomes  all  the  heavier,  and 
the  matter  is  one  of  much  nicety  and  difficulty.  It  is  in  cases 
of  this  kind  that  the  greatest  strain  is  put  upon  the  bench. 
Every  presumption,  however,  exists  in  favor  of  the  constitu¬ 
tionality  of  an  act,  so  that  the  burden  is  always  upon  the  litigant 
challenging  the  constitutionality  of  a  law.  The  judges  will  not 
assume  that  Congress  or  State  Legislatures  intended  to  violate 
the  Constitution,  or  that  they  have  violated  the  Constitution. 
They  must  be  sure,  by  a  preponderance  of  argument,  that  a 
law  is  bad.  This  too  is  fundamental.  In  the  vast  majority  of 
cases  the  final  decision  is  in  favor  of  the  constitutionality  of 
acts.  It  is  important  to  remember  this,  because  the  din  recently 
raised  might  lead  the  incautious  citizen  to  suppose  that  the 
courts  are  mowing  down  State  statutes  or  Acts  of  Congress  with 
such  freedom  as  to  amount  to  the  general  business  of  annulling 
the  legislative  will.  Such  is  not  the  case.  No  matter  how'  num¬ 
erous  the  instances  have  been  in  a  land  as  big  and  as  subdivided 
as  ours  into  many  States,  decisions  setting  aside  acts  of  a  legis¬ 
lature  or  of  Congress  are  few  in  comparison  with  those  where 
such  acts  have  been  sustained.  The  truth  is  that  the  judicial 
knife  has  been  but  sparingly  used  and  only  in  cases  of  freedom 
from  doubt,  that  condition  being  determined  by  the  majority 
of  the  judges  in  the  court  of  last  resort.  There  is  no  other  prac¬ 
tical  way.  I  have  taken  the  time  to  count  the  number  of  de¬ 
cisions  in  the  Supreme  Court  of  the  United  States  where  acts  of 
Congress  were  declared  to  be  unconstitutional,  and  I  find  that 
from  1790  to  the  present  time  but  twenty-two  instances  exist. 
During  the  same  time  they  exercised  the  same  power,  without 
challenge  as  to  jurisdiction,  in  relation  to  the  statutes  of 
States  and  Territories  in  one  hundred  and  eighty-two  instances. 


24 


The  proportion  of  cases  in  which  acts  of  Congress  and  acts  of 
State  Legislatures  were  sustained,  particularly  in  the  exercise 
of  that  salutary  but  vague  power  known  as  the  police  power,  is 
as  twenty  to  one. 

It  is  clear  that  the  questions  to  be  considered  are  not  those 
with  which  the  people  at  large  are  generally  familiar,  or  which 
they  are  generally  prepared  to  discuss.  The  matter  necessarily 
must  turn  upon  the  interpretation  of  written  language  as  applied 
to  complicated  facts.  It  involves  the  highest  exercise  of  trained 
intellects  dealing  with  the  specialty  of  constitutional  law. 
Seventh-tenths  of  the  lawyers  in  the  land  will  frankly  admit  that 
they  are  not  constitutional  lawyers. 

In  view  of  the  peculiar  character  of  the  discussion  to  be  con¬ 
ducted,  it  must  strike  the  thoughtful  citizen  that  the  notion 
that  such  questions  as  the  overruling  of  these  decisions  of  the 
court  of  last  resort  should  be  debated  and  deliberated  upon  by  the 
people  in  mass  meeting,  with  a  view  of  recalling  the  judges  or  re¬ 
calling  the  decisions,  is  about  as  grotesque  and  impracticable 
a  proposition  as  can  be  made.  But  it  has  been  contended  that 
only  where  the  decision  is  in  defiance  of  justice,  and  a  consider¬ 
able  number  of  people  think  so,  that  the  doctrine  of  recall  would 
apply.  The  fairest  way  of  testing  this  is  to  take  cases  arising 
under  what  may  be  called  the  police  power  of  the  States,  because 
these  are  the  ones  that  touch  citizens  most  closely  in  their  per¬ 
sons  or  their  property.  To  these  may  be  added  the  tax  cases  as 
affecting  property,  and  to  these  again  may  be  added  questions 
arising  under  workmen’s  compensation  acts.  Observe  how 
problems  may  breed.  Under  the  police  statutes  affecting  the 
health  and  good  order  of  the  community,  how  easy  it  would  be 
to  secure  a  mass  meeting  of  citizens,  more  or  less  superstitious 
and  defiant,  on  the  subject  of  vaccination  or  quarantine.  Or 
take  pure  food  laws.  How  easy  it  would  be  to  get  up  in  oleo¬ 
margarine  cases,  for  instance,  an  opposition  on  the  ground  of  the 
injustice  of  taking  and  destroying  the  property  of  citizens 
selling  an  article  which  is  entirely  harmless  as  a  food.  Take 
tax  cases,  whether  income  or  not,  whether  the  single  tax  upon  land 
or  the  exoneration  of  real  estate,  and  how  complicated  the  dis¬ 
cussion  must  become,  entirely  apart  from  the  question  of  the  pro- 


25 


portion  in  which  each  class  shall  bear  the  burdens  of  the  State, 
and  entirely  irrespective  of  the  opportunities  offered  for  fraud, 
perjury  and  evasion.  Take  then  the  Employer’s  Liability  Acts. 
These  exist  in  eleven  States,  in  six  of  which  the  constitutionality 
has  been  questioned.  These  acts  grew  out  of  a  very  general 
sentiment  that  the  burden  of  accidents  in  intrinsically  danger¬ 
ous  trades  should  be  so  adjusted  between  the  employer  and  the 
employee  that  the  burden  should  fall  directly  upon  the  employer 
and  indirectly  upon  the  consumer,  so  that  the  shock  of  the  acci¬ 
dent  might  be  borne  ultimately  by  the  community.  With  the 
justice  of  this  policy  the  judges  have  no  quarrel.  Their  diffi¬ 
culty  has  been  to  make  the  law  square  with  the  existing  consti¬ 
tutional  provisions  which  the  people  have  permitted  to  stand. 
The  constitutional  barriers,  if  removed,  would  leave  the  judges 
free,  but  instead  of  clearing  the  way  by  intelligently  considered 
amendments,  an  ungovernable  rage  is  to  be  leveled  at  the  judges. 
No  blame  should  attach  to  that  department  of  the  government 
which  did  not  create  the  barrier,  and  whose  sworn  duty  it  is  to 
sustain  the  barrier  as  long  as  the  people  say  that  it  shall  stand. 
No  just  master  would  blame  a  servant  for  that  which  is  not  his 
fault.  No  just  people  will  blame  their  judicial  servants  for  that 
which  is  not  their  fault.  If  a  man  builds  a  solid  wall  across  a 
road  that  he  owns,  it  is  neither  rational  nor  just  for  him  to  turn 
his  anger  upon  his  driver  for  not  smashing  his  vehicle  against  it. 
The  very  existence  of  the  wall  is  a  declaration  of  the  master’s 
will  that  driving  in  that  direction  is  forbidden.  Read  the  dif¬ 
ferent  Constitutions  affecting  employers’  liability.  Study  the 
decisions  of  the  courts.  Look  at  the  extreme  intricacy  of  the 
questions.  Observe  the  anxiety  of  the  judges  to  give  effect  if 
possible  to  the  statutes.  In  some  of  the  States  the  principle 
has  been  adopted  of  accumulating  an  insurance  fund  in  the  hands 
of  the  State,  or  under  its  control,  to  which  employers  contribute, 
and  from  which  injured  workmen  are  paid.  These  laws  have 
been  sustained  as  constitutional.  In  others  the  principle  of 
contract  has  been  introduced,  by  which  the  employer  and  the 
employee  agree,  in  the  absence  of  express  stipulations,  to  settle 
upon  a  tariff  or  scale  of  compensation  for  injuries.  These  laws 
have  not  yet  been  definitely  tested.  In  other  States  both  these 


26 


features  are  lacking,  and  in  one  of  them  the  law  was  held  to  be 
unconstitutional  by  a  unanimous  court  on  the  ground  that  the 
master  in  that  case  was  entirely  without  fault  or  negligence  of 
any  kind.  The  accident  was  a  pure  accident  without  negligence 
on  the  part  of  the  master,  and  under  the  Fourteenth  Amend¬ 
ment  of  the  Constitution  of  the  United  States,  and  under  the 
State  Constitution,  it  was  held  that  no  man  could  be  deprived 
of  his  property  without  due  process  of  law.  What  fair  minded 
man  can  say  that  this  is  a  ruling  purely  in  defiance  of  justice? 
If  it  be  just  that  a  man’s  property  can  be  taken  to  pay  for 
another’s  injury  when  the  man  whose  property  is  taken  has  com¬ 
mitted  no  fault  whatever,  the  same  rule  must  apply  to  every  man 
who  employs  laborers,  whether  few  or  many.  Smarting  dam¬ 
ages  will  not  be  confined  to  corporations  or  to  rich  employers 
alone.  The  truth  is  that  the  reversal  in  the  last  few  years  of  the 
long  established  rules  of  negligence,  of  assumption  of  the  risks  of 
employment,  of  the  doctrine  of  the  negligence  of  co-employees, 
and  the  modifications  of  the  doctrine  of  contributory  negligence, 
have  given  birth  to  problems  of  great  perplexity.  Can  these  be 
properly  solved  by  mass  meetings?  But,  whatever  the  difficulty, 
must  we  seek  a  remedy  by  recalling  the  judges  and  emptying  the 
bench,  or  by  recalling  decisions  and  making  the  law  uncertain, 
by  planting  ourselves  upon  the  slippery  ground  of  an  alleged 
defiance  of  justice,  where  the  point  of  view  of  what  is  justice  is 
largely  dependent  upon  whose  ox  is  being  gored?  Then,  too, 
how  much  of  the  decision  is  it  intended  to  recall?  If  loss  for  an 
injury  is  to  be  paid  for  independent  of  fault,  how  long  will  it  be 
before  the  principle  is  extended  to  making  men  pay  their  neigh¬ 
bors’  debts,  so  as  to  prevent  business  unfortunates  from  becom¬ 
ing  a  burden  to  the  community?  Some  men  have  argued  that 
the  extent  of  the  doctrine  of  recall  should  be  limited  so  as  to 
guard  against  its  too  wide  application.  Let  such  define  in  writing 
just  exacdy  what  they  mean.  Let  them  sit  down  and  try  it. 
They  will  probably  find  themselves  dealing  with  unfamiliar  and 
edged  tools.  In  their  plight  perhaps  they  will  ask  some  friend 
to  do  it,  whether  layman  or  lawyer,  and  then  present  it  at  a  mass 
meeting  in  the  shape  of  a  resolution.  After  it  has  been  torn  to 
shreds  bit  by  bit  by  amendments  offered  through  passion  rather 


27 


than  by  reason,  the  resolution  in  its  final  form  passes.  What  is 
the  result?  It  is  clear  that  whoever  wrote  the  final  resolution 
becomes  a  substitute  for  the  judges  in  declaring  what  the  law  is, 
in  short,  becomes  the  final  expositor  of  the  law.  He  has  not 
been  elected  by  the  people.  He  does  not  represent  the  people. 
He  is  not  a  judge.  He  is  not  trained  in  judicial  forms  of  pro¬ 
cedure  or  judicial  systems,  and  representative  government  is 
at  an  end.  The  judiciary  has  been  recalled.  The  decision  has 
been  recalled.  Every  mass  meeting  has  its  own  set  of  resolutions. 
What  then  is  the  law?  Who  is  to  determine?  Seriously,  my 
fellow  lawyers,  is  this  what  we  are  aiming  at? 

I  confess  to  a  feeling  akin  to  awe  when  I  contemplate  the  man¬ 
ner  in  which  for  a  century  and  a  quarter  the  judges,  both  Fed¬ 
eral  and  State,  have  with  rare  exceptions  upheld  the  indepen¬ 
dence  of  the  bench,  a  doctrine  which  it  cost  our  English  sires 
six  centuries  of  struggle  to  acquire,  which  is  secured  by  the  ten¬ 
ure  of  good  behaviour,  which  is  safe  from  the  odium  of  appoint¬ 
ing  boards  and  commissions  and  licenses  and  privileges,  which 
would  sully  the  ermine  by  the  blight  of  suspicion;  that  inde¬ 
pendence  which  knows  no  fear,  which  is  no  respecter  of  persons, 
which  cringes  to  no  governmental  officer,  which  quakes  at  no 
hurricane  of  popular  clamour,  which  knows  nothing  about  the 
parties  but  everything  about  the  cause,  which  does  nothing  for 
the  sovereign,  nothing  for  a  patron,  but  everything  for  justice, 
which  dreads  no  consequences  save  the  stings  of  conscience  for 
violated  duty,  which  pronounces  judgment  as  it  is  given  to  finite 
human  understanding  to  see  the  law,  that  independence  which  is 
the  most  precious  jewel  in  the  people’s  treasure  chest,  which 
dissipates  by  its  light  the  darkness  of  ignorance,  and  which  gives 
assurance  that  never  will  a  sober,  righteous  and  self-respecting 
people,  with  a  full  knowledge  of  its  value,  permit  the  measureless 
abomination  and  the  unspeakable  sacrilege  of  the  judicial  recall. 

In  truth,  so  far  as  the  thoughts  of  mortals  may  approach  the 
divine  mind,  the  architecture  of  our  Constitution  resembles  that 
of  the  heavens,  where  States  circle  like  planets  about  the  Federal 
Government  as  a  central  sun,  the  source  of  light,  power,  harmony 
and  beauty,  productive  of  separate  existences  and  destructive 
of  none,  while  moving  without  collision  or  chaos  to  the  majestic 
music  of  freedom  down  centuries  of  time. 


Paa^hlets 


L46269_ vol.70 


DATE 


ISSUED  TO 


'  .  7o 


